We began with a look at a most important case on disputed identification evidence, that of R v Turnbull [1977]. It is an examiner’s favourite and is highly likely to figure in the case study in the examination. The case gave guidelines for the treatment of cases involving wholly or substantially the correctness of identification where there is a dispute. These guidelines are:

The judge must warn the jury of the special need for caution before convicting the accused in reliance on evidence of identification, and draw their attention to the risk of error in that a mistaken witness may still be a convincing one.
The judge should ask the jury to examine closely the circumstances of the identification. Is the identification one of good quality or poor quality (i.e. was the defendant related or well known to the identifying witness and what were the lengths of observation, lighting conditions, distance and also had the witness seen the suspect before?). The time lapse between the incident and the witness giving a description to the police is also a matter which the judge should draw to the jury’s attention.
The judge should specifically remind the jury of any weakness in the prosecution evidence.
If there is any discrepancy between the witness’s first description of the suspect to the police and his actual appearance the prosecution must inform the defence.
Where the quality of the identification is good (e.g. long observation in good light or where the witness knew the suspect by sight before, or indeed is related to him), the jury can safely be left to assess the evidence, even though there is no other evidence to support it.
Where the quality of the identifying evidence is poor, for example a fleeting glimpse of a witness, then the judge should withdraw the case nom the jury unless there is other evidence which goes to support the correctness of the identification. If this is the case the judge can leave the matter to the jury, warning them in the manner mentioned above and indicating to the jury the evidence which he adjudges capable of supporting the identification evidence.

If the accused puts forward an alibi (which obviously is of considerable importance in identification cases) the judge should direct the jury that if they disbelieve the alibi this need not in itself be conclusive evidence. Innocent persons may invent alibis out of stupidity or panic. The jury need only treat it as supporting evidence if satisfied that it was put forward out of a desire to deceive them and for no other purpose.

The failure to give a Turnbull warning in identification cases will almost inevitably lead to a conviction being quashed. It is important to recognise that in such cases corroboration is not required, but the judge must warn the jury of a need for special caution.

We then turned to an area of law once governed by the common law, but now mostly falling within the Criminal Justice Act 2003, that of HEARSAY EVIDENCE. A common definition of hearsay is:

“A statement, oral or written, other than one made by a person while giving oral evidence in the proceedings . . . to prove the truth of any fact stated in it. “

The most common example of hearsay is where a witness repeats to the court what some other person has said or done or heard. The rule covers a number of other situations, including a party presenting to the court a statement made by a witness on an occasion other than whilst giving evidence. This includes a confession made by the accused at the police station, one of the best-known exceptions to the hearsay rule. Another common example of hearsay, is a witness’s written statement being put in evidence to the court when he is not able to attend trial to give oral evidence.

The general rule is that hearsay evidence is not admissible in criminal cases because the common law required witnesses to attend court and give oral evidence about facts that they had perceived with one or more of their senses. Evidence falling within the hearsay rule offended this fundamental principle because it was not possible for the hearsay witness to be cross-examined by the other side.

The rule has recently been radically reformed by ss114-130 CJA 2003.

The wording of CJA 2003 suggests a new inclusionary approach to hearsay: instead of stating that hearsay evidence is inadmissible unless . . ., CJA 2003 states that a hearsay statement is admissible, but only if ... Although hearsay statements are more readily admissible under CJA 2003, however, it is still necessary for practitioners - and students - to identify the section of CJA 2003 or the common law rule under which a statement can be admitted, so the rule remains exclusionary, but subject to a wide range of exceptions.

Not every case where a witness wishes to repeat in court something that was said out of court will be hearsay. The vital point is whether the words are repeated in order to persuade the court of the truth of what was said or merely to tell the court that the words were spoken. This important distinction is clearly seen in Subramanian v Public Prosecutor Of Malaya [1956], in which the defendant’s defence was that he had been forced by duress - by threats to himself and his family - to commit the offence. At his trial the judge refused to allow him to repeat the words of the threats, holding that this would be hearsay. It was held on appeal to the Privy Council that the judge was wrong; the words were not hearsay because they were repeated not to prove the truth of their contents but merely to show that they were said and thus to show the likely effect on the accused’s mind.

As a result of Criminal Justice Act 2003 it is possible to recognise a statement as hearsay by asking three questions:

Was the statement made out of court?
Was the purpose of repeating the statement in court to prove that facts contained within the statement were true?
Was the purpose of the maker of the statement to cause another person to believe a matter stated?

If the answer to each of those questions is “Yes”, then the statement is hearsay; if the answer to any of those statements is “No”, then the statement is non-hearsay.

Under s118 Criminal Justice Act 2003 a number of common law rules have been preserved, but one of the rules that frequently appeared on examination papers, dying declarations, has been abolished. This is not a major concern since statements formerly admissible as dying declarations will now be admissible either as res gestae statements or under s116 CJA 2003.

PUBLIC DOCUMENTS are admissible in evidence to prove the truth of the matters stated in them, for example, in a public register (e.g. of births, deaths and marriages). To come within the rule the document does not merely have to be concerned with a public matter, or to come from some official source, it must relate to a public matter, have been made in pursuance of the duty of a public officer, be intended to be a permanent record and be available for inspection by members of the public.

RES GESTAE STATEMENTS. Res gestae means “transaction” or “series” of events. Under this rule, statements may be admitted if they are made at the very time of, or sufficiently contemporaneously with, a particular incident (usually the commission of a crime), because there is no opportunity to fabricate such evidence, so they have a special probative value.

Turnbull [1984] the words of a fatally wounded man who named his attacker as he staggered into a bar, and repeated in the ambulance, were admitted as evidence. He told both that “Ronnie Tommo” had stabbed him. This was Turnbull’s nickname. It was held that the person to whom the words had been spoken could repeat them because they were part of the res gestae, that is, they were said so close in time to the event in question as to have special probative value.

There are a number of statutory exceptions where Parliament has provided that hearsay evidence should be admissible in criminal proceedings, subject to complying with the appropriate conditions.

Section s114 (1) Criminal Justice Act 2003 admits hearsay evidence:

by statute (s76 PACE 1984, s9 Criminal Justice Act 1967 (CJA 1967), ss116 and 117 CJA 2003);
at common law (under the rules preserved by s118);
by agreement; or
in the interests of justice.

CONFESSIONS under s76 PACE 1984 have already been discussed; as have the common law rules preserved by s118. The remaining statutory exceptions are covered here. Before considering those, however, admission of hearsay by agreement and “the safety- valve” exception can be dealt with very shortly.

If both parties agree to the admission of hearsay (allowed by s114(1)(c)), then it is very unlikely to be excluded by a court.

STATEMENTS ADMISSIBLE UNDER S9 CRIMINAL JUSTICE ACT 1967. s9 CJA 1967 provides the most important statutory exception to the hearsay rule and the application of the rule is in daily use in the Crown Court and magistrates’ courts. s9 provides that written statements are admissible in all criminal proceedings provided:

they are signed; and
they contain a declaration in specified words as to their truth; and
the statement has been served on the opposing party; and
no objection was made to the statement being put before the court in the witness’s absence.

If the other party objects within seven days to the statement being used in the witness’s absence the witness will be required to attend trial to give oral evidence. In view of the requirement that the other side’s consent must be obtained before a s9 statement can be used at trial, such statements are generally used only for non-controversial matters.

s116(1) Criminal Justice Act 2003 is known as the unavailability exception: it admits both oral and written statements of absent witness in five situations, namely that the witness:

(1) is dead;
(2) s unfit to give evidence because of his bodily or mental condition;
(3) is outside the United Kingdom and it is not reasonably practicable to secure his attendance;
(4) cannot be found, although such steps as are reasonably practicable to take to find him have been taken;
(5) does not give (or does not continue to give) oral evidence in the proceedings because of fear, either at all or in connection with the subject-matter of the statement, and the court gives leave for the statement to be given in evidence.

These conditions are almost identical to the previous legislation.

Where the reason for unavailability is one of those listed in (1) to (4), admission of the hearsay statement is automatic; where the reason for non-attendance is through fear, the statement will be admissible only where the judge is satisfied that its admission is in the interests of justice.

s116(3) explains what is meant by “fear”: for the purposes of s 116(2)(e) `fear” is to be widely construed and (for example) includes fear of the death or injury of another person or of financial loss. This suggests that the courts will construe the term widely.

Note that s116(2)(e) – where a witness is absent through fear – is the only paragraph to which a leave requirement is attached. The criteria for granting leave are established in s116(4). The court must be satisfied that the admission of the statement is in the interests of justice and must have regard to:

(a) the statement’s contents;
(b) any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement f the relevant person does not give oral evidence);
(c) in appropriate cases, the fact that a special measures direction under s 19 Youth Justice and Criminal Evidence Act 1999 could be made in relation to the relevant person; and
(d) any other relevant circumstances.

s117(1) CJA 2003 allows for the admission of a statement contained in a document as evidence of any matter stated provided that oral evidence on that matter would have been admissible and that the requirements of s117(2) are satisfied. The requirements of s117(2) are:

(a) the document or the part containing the statement was created or received by a person in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office;
(b) the person who supplied the information contained in the statement (the relevant person) had or may reasonably be supposed to have had personal knowledge of the matters dealt with; and
(c) each person (if any) through whom the information was supplied from the relevant person to the person mentioned in paragraph (a) received the information in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office.

Under s117(4), where a document is prepared for the purposes of pending or contemplated criminal proceedings, or for a criminal investigation, the additional requirements of s117(5) must also be satisfied: there must be a statutory reason for non-attendance of the supplier of the information. The statutory reasons are the five listed in s116(2), plus a sixth: the supplier of the information cannot reasonably be expected to recollect the matters dealt with in the statement, having regard to the length of time since he supplied the information and all other circumstances.

It is important to note that computer records in hearsay form are also admissible provided the conditions of s69 POLICE AND CRIMINAL EVIDENCE ACT 1984 are satisfied. The word “computer” means “any device for processing or storing information”. The definition includes word processors, calculators, adding machines as well as computers. Think of a till roll as a good example. A party therefore wishing to put hearsay computer evidence before the court must firstly satisfy the requirements of s69 PACE by showing that there are no reasonable grounds for believing the computer records to be inaccurate because of improper use and that the computer was operating properly. This burden is satisfied by the party producing a certificate to the court signed by a person occupying a reasonable position in relation to the operation of the computer.

Confessions provide the most important exception to the hearsay rule, and is where we shall begin next time.